Drug dealer Andre James jailed for gun crime wins 'human rights' case

Foreign drug-dealer and gun criminal Andre James has been allowed to stay in
Britain partly because he would return to a life of crime if he was
deported.

Jamaican Andre James told judges: 'There's no work so I might fall back into committing crimes'Photo: ANDREW FOX

By David Barrett and Ben Leach

9:00PM GMT 26 Nov 2011

Andre James convinced judges that deporting him to Jamaica would make him more likely to reoffend - even though the Home Secretary wanted him removed from the country after he was jailed for five years in 2007 for possessing a revolver and ammunition, supplying Class A drugs, carrying a blade in public and being in possession of criminal property.

He was also allowed to stay on the grounds that his human right to a "family life" would be infringed by being forcibly returned, because he has two children in Britain. One of them was fathered while he appealed against his deportation.

The case highlights growing concerns over the use of human rights legislation by foreign criminals to frustrate legislation which makes clear that anyone serving more than a year in prison should be automatically deported.

Coalition ministers have launched a review of the way the crucial element of the law, the controversial Article 8 of the Convention on Human Rights - which guarantees a "right to a private and family life" - is being used.

MPs may be asked to back a powerful statement in the Commons in a bid to deter judges from "gold-plating" the human rights of criminals and immigration offenders by going far further than the legislation actually requires.

In the latest judges upheld both parts of James's claim to stay in Britain - both his human rights claim, and his assertion that returning to Jamaica would increase the chance of recidivism, because of its criminal atmosphere.

In their ruling upper immigration tribunal judge Peter King and deputy David Garratt said in their ruling: "We consider that returning him to Jamaica would expose him to the various temptations to which he has succumbed in this country, to the detriment of the welfare of society as a whole or to the appellant in particular.

"It is clear that drugs and the drugs trade is a significant feature of life in Jamaica and it may well be that, in commonsense, were the appellant to find difficulty in obtaining lawful employment upon return he would revert to a life of criminality.

"We assess, therefore, that the risk of his offending or reoffending is much greater were he to be returned to Jamaica, than it would be were he to be allowed to have the stability and support of his family and to obtain work."

James, now 28, arrived in Britain in 1999, aged 16, on a visitor's visa. The Jamaican was granted indefinite leave to remain the following year because his father and stepmother were already settled here.

According to the immigration courts, James took part in buying and selling cocaine for a "prolonged" period between 2004 - when he became a father for the first time with girflriend Victoria McLean - and 2006, when he was arrested.

Pleading guilty early the following year, he was give a mandatory minimum five year sentence under measures introduced by the previous Labour government to combat gun crime and released on licence in summer 2009, by which time he knew the Home Office was trying to deport him.

Between losing his first appeal and winning on the second attempt James fathered a second child with Miss McLean, born in January this year.

Having another child strengthened his family attachments in this country and boosted his arguments against deportation.

The judges said James had "devoted himself wholeheartedly to the wellbeing of the family" since being released from prison.

James has rarely had a job since his conviction and had turned down job offers since coming out of prison because he was under a curfew, the court heard.

Deporting him would be "disproportionate" under Article 8, the judges concluded.

James, who lives in Cinderhill, Nottingham, said: "I like it here - England is not like Jamaica.

"It's a very different country. Criminality is an everyday thing over there. I couldn't get a job over there as there's no work so I might fall back into committing crimes."

"I was really worried about going back to Jamaica. I left when I was 14. This is my home. All my friends and family are here."

Miss McLean is the breadwinner and works as a customer service agent for an insurance firm, the court heard, while James cares for the children and does housework. He failed to pass a plumbing course in 2009.

Miss McLean, 28, said: "It was the right decision to let him stay in this country.

"He has a home here with me and our children, and looks after them while I am at work. He is a good man, and a good father.

"His convictions are in the past. Everyone makes mistakes, and everyone deserves a second chance.

"He stays out of trouble now, and he knows that if he got involved in it again, I would be gone. I wouldn't tolerate it. That experience taught him a lot."

She added: "He really cares about his children so why take their father away from them? It's crazy."

Dominic Raab MP, who is campaigning to reform Article 8, said: "It is bad enough that a man convicted of carrying a revolver and a blade cannot be deported on inflated human rights grounds, but it is astonishing that the judge was influenced by his assessment that the offender was more likely to re-offend if returned to Jamaica."